Davis v. Widman

• Decision Date: 13 October 2009
• Docket Number: No. 13-09-20.,13-09-20.
• Citation: 922 N.E.2d 272,2009 Ohio 5430,184 Ohio App.3d 705
• Parties: DAVIS, Appellant, v. WIDMAN et al., Appellees.
• Court: Ohio Court of Appeals

922 N.E.2d 272

184 Ohio App.3d 705

2009-Ohio-5430

DAVIS, Appellant, v. WIDMAN et al., Appellees.

No. 13-09-20.

Court of Appeals of Ohio, Third District, Seneca County.

Decided October 13, 2009.

Charles R. Hall Jr., for appellant.

James W. Fruth, for appellees.

PRESTON, Presiding Judge.

{¶ 1} Plaintiff-appellant, Jennifer Davis, appeals the judgment of the Seneca County Court of Common Pleas dismissing her complaint against defendants-appellees, Christopher and Joanne¹ Widman. For the reasons that follow, we affirm.

{¶ 2} On April 14, 2009, Davis filed a complaint that essentially alleged that the Widmans' undersized driveway-drainage tile caused flooding on her property. Davis attached several items to the complaint, including a letter, a topographical map, an affidavit, and pictures demonstrating the alleged damage. On that same day, Davis also filed a motion for a temporary restraining order asking the trial court to order (1) replacement or repair of the driveway culvert, (2) the payment of the costs of the legal action, attorney fees, and expenses related to replacing said the driveway culvert, and (3) all other relief deemed equitable. The motion was accompanied by the aforementioned exhibits.

{¶ 3} On April 15, 2009, the trial court overruled Davis's motion for a temporary restraining order and set a preliminary-injunction hearing for May 18, 2009.

{¶ 4} On April 22, 2009, the Widmans filed a 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted. The trial court scheduled the motion hearing for May 18, 2009, just prior to the preliminary-injunction hearing.

{¶ 5} On May 19, 2009, the trial court filed its judgment entry dismissing Davis's complaint.

{¶ 6} On May 27, 2009, Davis filed this present appeal. Davis now appeals, raising three assignments of error for our review. We have elected to address her assignments of error out of the order they appear in her brief and to combine them where appropriate.

ASSIGNMENT OF ERROR NO. III

The trial court abused its discretion by not providing the appellant with notice that it converted the motion to dismiss to the motion for summary judgment.

ASSIGNMENT OF ERROR NO. II

The trial court abused its discretion by granting the appellees [sic] motion to dismiss.

{¶ 7} In her third assignment of error, Davis argues that the trial court erred by not providing her with notice that it was converting the motion to dismiss into a motion for summary judgment. The Widmans argue that Davis had notice that the court was converting the motion, since they agreed to the court's viewing the scene before ruling on the motion.

{¶ 8} In her second assignment of error, Davis argues that the trial court abused its discretion by relying upon allegations outside the face of the complaint since it conducted a court view of the location in question. Furthermore, Davis points out that the trial court inappropriately reviewed the file when granting the motion to dismiss. The Widmans argue, however, that the complaint is barred by the four-year statute of limitations found in R.C. 2305.09, because some of the pictures Davis attached to her complaint were dated more than four years prior to the filing of the complaint.

{¶ 9} Although we conclude that the trial court erred when it relied upon evidence that was outside of the complaint in granting the Widmans' Civ.R. 12(B)(6) motion, we find the trial court's error harmless since Davis's complaint should have been dismissed as a matter of law. Thus, Davis has suffered no prejudice from the trial court's error, and we must affirm the trial court's judgment.

{¶ 10} Civ.R. 12(B) provides:

Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: * * * (6) failure to state a claim upon which relief can be granted * * *. When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.

"A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint." State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65 Ohio St.3d 545, 548, 605 N.E.2d 378, citing Assn. for Defense of Washington Local School Dist. v. Kiger (1989), 42 Ohio St.3d 116, 117, 537 N.E.2d 1292. For that reason, a trial court may not rely upon evidence or allegations outside the complaint when ruling on a Civ.R. 12(B)(6) motion. State ex rel. Fuqua v. Alexander (1997), 79 Ohio St.3d 206, 207, 680 N.E.2d 985. To sustain a Civ.R. 12(B)(6) dismissal, "it must appear beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief." LeRoy v. Allen, Yurasek, & Merklin, 114 Ohio St.3d 323, 2007-Ohio-3608, 872 N.E.2d 254, ¶ 14, citing Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11. Additionally, the complaint's allegations must be construed as true, and any reasonable inferences must be construed in the nonmoving party's favor. Id., citing Maitland v. Ford Motor Co., 103 Ohio St.3d 463, 2004-Ohio-5717, 816 N.E.2d 1061, ¶ 11; Kenty v. Transamerica Premium Ins. Co. (1995), 72 Ohio St.3d 415, 418, 650 N.E.2d 863.

{¶ 11} When reviewing a Civ.R. 12(B)(6) decision, this court must determine whether the complaint's allegations constitute a statement of a claim under Civ.R. 8(A). Keenan v. Adecco Emp. Servs., Inc., 3d Dist. No. 1-06-10, 2006-Ohio-3633, 2006 WL 1975871, ¶ 7. "All that the civil rules require is a short, plain statement of the claim that will give the defendant fair notice of the plaintiff's claim and the grounds upon which it is based." Patrick v. Wertman (1996), 113 Ohio App.3d 713, 716, 681 N.E.2d 1385, quoting Kelley v. E. Cleveland (Oct. 28, 1982), 8th Dist. No. 44448, 1982 WL 5979. See also Civ.R. 8(A)(1). When filing a claim pursuant to Civ.R. 8(A), "[a] party is not required to `plead the legal theory of recovery'"; furthermore, "a pleader is not bound by any particular theory of a claim but that the facts of the claim as developed by the proof establish the right to relief." Illinois Controls, Inc. v. Langham (1994), 70 Ohio St.3d 512, 526, 639 N.E.2d 771. Indeed, "that each element of [a] cause of action was not set forth in the complaint with crystalline specificity" does not render it fatally defective and subject to dismissal. Border City S. & L. Assn. v. Moan (1984), 15 Ohio St.3d 65, 66, 15 OBR 159, 472 N.E.2d 350. See also Parks v. Parks (Mar. 5, 1998), 3d Dist No. 1-97-60, 1998 WL 125558, at *2. However, "`the complaint must contain either direct allegations on every material point necessary to sustain a recovery on any legal theory, even though it may not be the theory suggested or intended by the pleader, or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.'" Fancher v. Fancher (1982), 8 Ohio App.3d 79, 83, 8 OBR 111, 455 N.E.2d 1344, quoting 5 Wright & Miller, Federal Practice & Procedure: Civil (1969), at 120-123, Section 1216.

{¶ 12} This court reviews de novo a trial court's decision to grant or deny a Civ.R. 12(B)(6) motion. RMW Ventures, L.L.C. v. Stover Family Invest., L.L.C., 161 Ohio App.3d 819, 2005-Ohio-3226, 832 N.E.2d 118, ¶ 8, citing Hunt v. Marksman Prod. (1995), 101 Ohio App.3d 760, 762, 656 N.E.2d 726. This court may substitute, without deference, its judgment for that of the trial court when reviewing de novo. Castlebrook, Ltd. v. Dayton Properties Ltd. Partnership (1992), 78 Ohio App.3d 340, 346, 604 N.E.2d 808.

{¶ 13} The trial court's judgment entry granting the Civ.R. 12(B)(6) motion to dismiss provides, in its entirety:

This matter came to be heard upon Defendant's [sic] Motion to Dismiss. The Court met with counsel in chambers and then counsel spoke with their clients. Ultimately, all agreed the Court should drive out to the location in question. The culvert is essentially a tile under the lane with depressions cut out on either end and lined with stone. It is clear, upon examination, the elevation along the lane is lower than either side. The water has nowhere to go. The corn stubble does not point one way or the other. Therefore, having reviewed the file, the law and the scene, this Court must grant the Motion to Dismiss.

It is therefore, ORDERED, ADJUDGED AND DECREED that the Defendant's [sic] Motion to Dismiss is GRANTED.

Costs to Plaintiff.

{¶ 14} Reviewing the trial court's judgment entry, it is evident that (1) the trial court never converted the motion to dismiss to a motion for summary judgment and (2) the trial court considered evidence outside the face of the complaint. With regard to the first issue, the trial court plainly stated that it was ruling on a motion to dismiss several times in its judgment entry. For purposes of appellate review, we presume that the trial court did what it said it did. Figel v. Figel, 3d Dist. No. 10-08-14, 2009-Ohio-1659, 2009 WL 903854, ¶ 11, citing Betz v. Timken Mercy Med. Ctr. (1994), 96 Ohio App.3d 211, 216, 644 N.E.2d 1058. Therefore, the trial court was not required to give Davis notice that it converted the motion to dismiss into a motion for summary judgment when it never, in fact, converted the motion in the first place. For this reason, Davis's third assignment of error lacks merit.

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